No. 2009/01749/A5
Neutral Citation Number: [2009] EWCA Crim 2344

IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Tuesday  27  October  2009

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MRS  JUSTICE  RAFFERTY  DBE

and

MR  JUSTICE  HENRIQUES

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ATTORNEY GENERAL'S REFERENCE No. 30 of 2009

UNDER  SECTION  36  OF

THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A

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MICHAEL  STEVENSON
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Mr A Jafferjee QC appeared on behalf of the Attorney General
Mr P Sloan QC appeared on behalf of the Offender
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J U D G M E N T
Tuesday  27  October  2009

THE LORD CHIEF JUSTICE:
1.  This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review a sentence which she regards as unduly lenient.  We grant leave.

2.  The sentence was imposed at Newcastle Crown Court by Walker J on 11 March 2009 following the offender's conviction for murder.

3.  The offender is Michael Stevenson.  He was born in February 1988 and is therefore aged 21.  Although he is young, his previous record for criminal offences includes two occasions when he was sentenced to custody for burglary.  

4.  On 11 March 2009 he was convicted by the jury on the single count of murder.  He was sentenced to life imprisonment.  The judge ordered that the minimum term should be twenty years' imprisonment (less the time spent in custody on remand).

5.  This is a dreadful case in which the offender tricked his way into the home of the deceased, who was a stranger to him, in order to steal his money.  The deceased was 89 years old.  In a sustained and savage attack he was beaten with his own walking stick and stamped upon.  He died of his injuries four weeks later.

6.  The facts are these.  Harold Lindley lived alone in his home in Newcastle-on-Tyne.  Although he was 89 years old and needed the assistance of a number of carers, and of his son, his daughter and his family who all lived nearby, he was able to lead an independent life.  He was plainly frail.  Although he had suffered a stroke, he was mentally alert.  

7.  Mr Lindley would normally draw out cash from an ATM which would be expected to last him for six weeks.  On 27 March 2008, in the company of his son-in-law, he obtained his cash.  His family estimate that at the time he was attacked he would have had between £40 and £50 in the house.  After the attack neither the money nor his wallet were found.  

8.  The offender lived nearby.  Quite apart from his previous convictions, he had developed a pattern of targeting elderly people in their homes in order to steal money to feed his addiction to crack cocaine.  

9.  On 25 March 2008 he went to the home of two sisters, one aged 77 who was infirm, and the other aged 69.  They had known the offender for many years.  He came to their house at 11pm with a false pretence that his girlfriend had just been taken to hospital to deliver their baby and that he needed money for a taxi to go to the hospital with her.  That was untrue.  She had yet to give birth; she did so two days later.  In kindness the sisters gave him £25.  Before he left he responded to their kindness by stealing a purse from the sitting room.  It contained £40 to £50 in coins (an amount of money which mattered to them).

10.  At 6pm on 7 April 2008 the offender tricked his way into the home of a lady aged 71.  He was a stranger to her.  He claimed that her neighbour owed him some money which the neighbour had promised to return.  He claimed that he needed the money so that he could go to hospital where his wife was in labour.  He asked to use the lady's telephone and he asked for a glass of water.  Having been supplied with one, he left.  The lady then discovered that £90, her pension allowance, had been stolen from her purse which was inside her handbag in the sitting room.  

11.  Nine days later, on 16 April, the offender targeted the deceased who, although living nearby, was, as we have said, a stranger to him.  That morning a carer had visited the deceased who complained that he was tired as a result of a disturbed night.  Another carer visited him at 5.30pm, left a meal in the microwave oven and departed at about 6pm, leaving the deceased alone in his home.

12.  Some time that night the offender entered Mr Lindley's home.  After the attack, when he was found by a carer the following morning shortly before 10am, Mr Lindley said something about "someone came for something .... a young man said he wanted something for a girl".  The deceased was found lying on his back in the hallway.  His pyjama bottoms were down to his ankles.  His top set of teeth was on the carpet.  There were substantial deposits of blood in the premises, including blood deposits at low levels on the door.  It was obvious that he had been the victim of a brutal attack.  He was taken to hospital by ambulance.  He survived until 13 May, when he gave up his fight for life.

13.  The pathological examination revealed no less than fifteen sites of injury.  There were extensive head injuries, including tramline bruising of the jaw, cheek and forehead.  The deceased suffered internal head injuries, which included bleeding within the brain.  There were at least seven blunt impacts to his face.  His larynx was fractured as a result of either strangulation and/or stamping.  He had been struck by his own walking stick which was broken into three pieces as a result.  The examination also showed some defence injuries to his forearm.

14.  In one of the plasterboards in the deceased's house a hole was discovered.  That was more likely to have been caused by the deceased's head being forced into it than by the deceased falling against it.

15.  When the photographs of the head injuries were enlarged to an appropriate scale it was possible to conclude that the pattern of bruising corresponded to imprints of training shoes, thus demonstrating that the deceased's head had been forcibly stamped on at least twice.  The imprints corresponded with each of the trainers worn by the offender, including the heel.  The sentencing judge rightly described this attack as "conduct of extreme savagery" and "merciless".  It was a sustained attack of real ferocity.

16.  The scientific evidence against the offender was powerful.  His fingerprints were found in the lavatory and on the bathroom door.  Because the deceased had shed a great deal of blood, his blood was found on the offender's left trainer, although the offender had made an attempt to wash it.  Two footprints from the kitchen floor corresponded to the offender's right trainer.  Footprint impressions in the blood on the carpet, although poorly defined, corresponded with his left trainer.

17.  There are many disturbing features of this case, but there is one more to which attention must be drawn.  Following the attack, and when the deceased was lying fatally injured in his own home, the offender rang his drug dealer and then called for a taxi from the landline telephone.  He also rang his own mobile phone from the landline.  Shortly after 10pm he was driven away.  He called for another taxi in the early hours of the morning.  The driver observed that the offender appeared to have cash on him.

18.  Notwithstanding this attack, three days later the offender went to the home of an 83 year old gentleman, his girlfriend's grandfather.  He claimed that he needed money to take his girlfriend out for a meal.  The gentleman was unaware that the offender and his granddaughter were no longer in a relationship.  He gave the offender £20.  Later the offender returned at about 11.30pm and said that the granddaughter had been taken to hospital to have the child and that he needed money for a taxi.  He was given a further £15.

19.  The offender was arrested on 21 April 2008.  In his first interview he maintained that he had spent the night drinking with friends; that the trainers taken from him at the time of his arrest were the only ones he had; and that as far as he knew he had not been to the address where the murder had taken place, nor knocked on the door, and he did not think that there would be any forensic evidence to link him to that house.  

20.  He was interviewed again on 22 April.  He asserted that his trainers would not have left any marks inside the house.  When it was pointed out to him that his fingerprints had been found there, he was unable to explain their presence.  He then asked to speak to his solicitor, following which he volunteered this account: that he had been to the house to borrow some money; he had been to the lavatory; he had had a drink and left by taxi; this happened at about 6.30pm; the deceased was "safe" when the offender left his house; he had needed money and wanted to borrow money to take a taxi up to the hospital; Mr Lindley had fallen against the wall and that when he had done so he (the offender) had panicked; he had taken nothing out of the house; he had told Mr Lindley that he wanted money for a taxi because his girlfriend had been taken to hospital in labour; he denied taking Mr Lindley's wallet; he denied hitting him; he denied seeing his walking stick; and he did not know that Mr Lindley was badly injured when he left the house.

21.  After Mr Lindley's death, the offender was interviewed again.  During the course of four interviews he made no comment to any of the questions he was asked.  

22.  The allegation that the offender was responsible for this death was fought to the bitter end at trial.  Indeed at trial the offender claimed that another man had told him of a house from which property could be stolen.  When he arrived, he found that Mr Lindley had already sustained injuries.  He panicked and left (although not before he had found and stolen the wallet, telephoned his drug dealer and called for a taxi).  The issue at trial was whether the offender was correctly identified as the man responsible for the deceased's injuries and his death.  The jury was satisfied so that it was sure that he was.

23.  In a lengthy psychiatric report dated 18 February 2009 Dr Ince referred to the possibility that the offender suffered from mental disorders which lowered his degree of culpability.  There was evidence of the harmful use of cocaine, as well as mental and behavioural disorders due to alcohol dependence syndrome.  The judge believed that the offender was probably high on drugs at the time when he committed the offence.  Dr Ince considered that the offender's binge use of crack cocaine was responsible for psychological harm, including impaired judgment or dysfunctional behaviour.  The report concluded that the way in which the offender had acted demonstrated no evidence of substantial impairment of mental responsibility for his actions.

24.  The Attorney General points to a number of aggravating features which we shall address in due course.  She also identifies as possible mitigation two features: that although the burglary was deliberate, the direct physical attack was not premeditated; and that the offender was only 20 years old at the time when the offence was committed.  The judge identified three further features of mitigation which he addressed when deciding the minimum term.  He concluded that the offender had not intended to kill, nor had he realised that death could result.  He had in mind that the offender was not a mature adult, and he took account of the fact that, due to the harmful use of crack cocaine and alcohol, the offender suffered from a degree of mental disorder which had led to impaired judgment.  That conclusion is criticised by the Attorney General on the basis that the only relevance of disorder for the purposes of section 269(5), paragraph 11(c) of Schedule 21 to the Criminal Justice Act 2003, is whether such disorder lowered the degree of the offender's culpability.  It is contended that in the circumstances that had no application. 

25.  We have considered the authorities drawn to our attention by the Attorney General, and also Attorney General's Reference Nos 7 and 8 of 2006 (R v Ellis and another) which was drawn to our attention by Mr Paul Sloan QC on behalf of the offender.

26.  We must briefly summarise the salient features of this case, and simultaneously address the features of mitigation carefully drawn to our attention by Mr Sloan.  We cannot mince words.  An elderly man, frail and vulnerable but independent, was targeted because he was frail and vulnerable.  The Crown accepted, and we are not disposed to disagree, that the offender's initial objective was not violence but money.  He tricked the deceased into letting him into his home, just as he had tricked his elderly victims on previous occasions.  He was therefore a burglar.  That night in his own home Mr Lindley was attacked with unrelenting ferocity.  Fatal injuries were inflicted on him.  The injuries were numerous.  A brave effort at self-defence was brushed aside.  There was not, and there still is not, the slightest indication of any genuine remorse.  The burglary was deliberate and the victim was targeted with a view to burglary.  Although on the judge's findings the direct physical violence was not premeditated, we can only think that the offender attacked Mr Lindley because he objected, and reasonably objected, to something that the offender did, and was prepared to confront him.  The judge was not satisfied that the offender intended to kill the deceased.  That is a factor which in an appropriate case can be taken into account.  Indeed the Schedule provides expressly that it is a matter of mitigation.  However, before it is taken into account, where appropriate, as it was in this case, it must be remembered that even if the offender did not specifically intend to kill his victim, he undoubtedly intended to inflict injuries of the gravest kind on him and was certainly reckless about whether such an attack would prove fatal.  It is also true that at the time of the attack the offender was suffering from a degree of mental disorder due to his own misuse of drugs and alcohol, and equally true that he was still a very young man.  On the other hand, he had previous convictions for burglary.  He made a habit of targeting the elderly in their own homes.  So, although suffering from the self-inflicted disorder, the offender knew precisely why he had gone to the deceased's home and he knew precisely what he was doing.  In no sense did he act through immaturity or as a result of his self-inflicted disorder.  The use of the injured man's telephone immediately after the attack to make the calls that he did was callous in the extreme, and very revealing of the offender's true character. 
27.  In short, we cannot find in the psychiatric report evidence that the consequences of the offender's disorder lowered his degree of culpability to the slightest degree.  The report stated in terms that there was no evidence of substantial impairment of mental responsibility at the time of the attack on Mr Lindley.

28.  It is perhaps surprising to express the conclusion that a sentence which involves imprisonment for life is unduly lenient, when there can be no more severe sentence than imprisonment for life.  However, in the context of the minimum term, and applying the statutory criteria identified in Schedule 21 of the 2003 Act to the facts of this case, this sentence was lenient and unduly so.  The order made by the judge in relation to the minimum term will be quashed.  We have concluded that the minimum term should be increased to 25 years' imprisonment.

20.  Finally, we have read the moving impact statements from the victim's daughter and son-in-law.  We are deeply conscious of the appalling impact on them of the fact that this very well-loved man was deprived of the dignity of a peaceful end to his life.